Publication: Sunday Times
Issued:
Date: 2008-09-13
Reporter: Editorial
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Vindicated, But
Not Exonerated
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Judge Nicholson's decision on ANC president Jacob Zuma's latest attempt to
evade prosecution for his alleged crimes was a proud moment for South Africa and
a humiliating one for President Thabo Mbeki.
Many will claim vindication in the 114 pages of the judge's decision to declare
the second round of charges against Zuma invalid. Some of them will use it to
amplify demands for Mbeki's head.
In the long tradition of the KwaZulu-Natal bench, it was a watershed ruling that
laid down markers for our democratic development and it deserves respect for
more than just the decision on Zuma's fate. But we should
not read more into his words than he said.
Judge Nicholson said the National Prosecuting Authority had erred in
charging Zuma for a second time without first hearing his side and that the
charges were therefore invalid. He said he would offer no opinion on Zuma's
guilt or innocence, and he said there was evidence that Zuma might have been
right to allege a political conspiracy by Mbeki's executive to sideline him.
The ruling is an excellent application of the provisions of our constitutional
state. It reaffirmed that executive power is limited and pointed out some of its
boundaries, including the absolute prohibition on direct
or indirect influence of the judiciary and independent constitutional structures.
Zuma may have been vindicated on his charge of political manipulation of the
criminal justice system, but he has not been exonerated on
any of the charges of corruption, fraud, money laundering and tax evasion. He
has merely dodged prosecution one more time.
Though it was not the purpose of the ruling, it almost certainly clears
the way for Zuma to become president of this republic. Even if he does not win a
permanent stay of prosecution when he returns to court in November, the NPA will
find it difficult to lay charges for a third time.
That means Zuma will probably never have the day in court that he claimed to
want, but spent so much time and money avoiding. Unless he uses the presidential
authority that will probably be his next year to set up a
credible arms-deal inquiry, the country may never get the answers it
deserves to the questions raised by the charges against him. Our next president
is likely to be a man tainted by serious allegations
which, if true, almost certainly disqualify him as a suitable national leader.
Judge Nicholson's comments on the actions of Mbeki and his executive were
brought on by the prosecution's attempt to protect the
president by having certain defence allegations struck from the record *1.
The judge's findings are so devastating that, despite Mbeki's Pyrrhic victory
amid the ruins of a shattered Zimbabwe just 12 hours earlier, he has
no honourable option but to leave office *2.
Mbeki has regularly urged respect for the decisions of our courts. Now, as those
who had hoped the courts would block Zuma's path to power have done, he must
accept the court's finding and he must concede that the
prosecuting authority was influenced by fear of his anger.
We have argued for some months that it was time for Mbeki to go. Now we have
further evidence that his apparent respect for the institutions of state was a
facade and, once more, we urge him to resign in the interests of the country he
has failed to lead.
Judge Nicholson's ruling offers an opportunity to review some of our recent
history and to learn from it. It underlines the need to reassert the
independence of our judiciary and to rebuild respect for our judges and our
courts. Those who would kill for Zuma might hail this decision, but they must
accept that they cannot pick and choose the judges and the
judgments they will accept *3.
We need to root out the bad habits that Judge
Nicholson has identified, such as the blurring of the divide between the
Department of Justice and the prosecutorial services, but we must ensure that
the void left by political manipulation is not filled by political thuggery.
As Mbeki prepares to depart whether sooner or later the ANC must return to
its noble roots and rediscover the ideals that fuelled the struggle for
liberation. Zuma and his executive must find the courage to take charge, to lead
and to halt our descent into political anarchy.
If they do not unconditionally defend the pillars of our new society, if they
continue to put opportunism ahead of principle or they simply remain silent,
they leave a vacuum to be filled by the likes of the ANC Youth League.
Finance minister Trevor Manuel sounded a broad alarm in his Steve Biko memorial
lecture this week. In a call for leadership to lift the country up, he said: "We
need elites that plough back, not elites that plunder."
Let it be so.
With acknowledgements to Sunday Times.
*1 Exactly what I've been saying.
It is a total irony that a complete side issue should have achieved precisely
the opposite effect of what the NPA wanted.
But it is almost impossible for me to believe that the NPA's formidable legal
team of Wim Trengrove SC, Billy Downer SC, Anton Steinberg, inter alia could
have exposed themselves (legally speaking) in such a simple manner.
Who influenced the NPA's case and its response to the Applicant's Founding
Affidavit?
My guess it was Mbeki's personal legal hit woman Advocate Gumbi through the
manipulated office of NDPP Advocate Mokotedi Mpshe.
\Whatever, it is the most delicious of legal ironies ever in the history of
South African jurisprudence.
*2 The other honourable option is for a now newly
independent NDPP to charge Mbeki for his misconduct.
What, another irony?
Yes.
A third irony is that this pathetic little legal spat over the precise meaning
of a poorly worded clause in the NPA Act about review, recharge and
representation might lead the Accused to set up a credible Arms Deal enquiry.
A fourth irony is that this pathetic little legal spat gives every credence
about parallel interference by Mbeki and Maduna into the setup of the Arms Deal
joint investigation..
A fifth irony is that this pathetic little legal spat gives every credence about
parallel interference by Mbeki, Erwin, Lekota, Manuel and Radebe into the Arms
Deal joint investigation's Joint Report.
*3 For the next one will go the other way.
Judge Nicholson was asked in the present case to rule on whether the NPA Act
required representation before review of a case and re-indictment.
He found, probably correctly, but on the narrowest grounds and where he had to
resort to the "canons of construction" (Para. 76) of the wording of the
offending clause that representation was required before review of a case and
re-indictment.
In the next matter of permanent stay of prosecution, he will be asked to find
that the erstwhile Accused has no prospect of a fair trial.
But he is the appointed judge to hear the matter and so he would have to rule
that he could not force The State to be fair in its prosecution.
Only the most giant leaps of logic could hold that the Accused has no prospect
of a fair trial.
Some of the alleged crimes are ten years old, some eight years old, some five
years old, some three years old so the time factor is not a valid one.
The crimes committed in not prosecuting Zuma in 2005 were committed by Mbeki,
Maduna and Ngcuka, not by the prosecutors Advocates Downer and Steinberg so the
prejudice factor is not a valid one.
My view the judge will be very hard-pressed indeed to find a cogent reason why
the Accused can not get a fair trial.
Then he will hand down a judgment and the ANC and its allies will shout and
froth and scream, signifying nothing.
They have held that this current judgment is a sober one given by a sober judge.
The next judgment will also be a sober one given by a sober judge.
Maybe Judge Nicholson is even cleverer that he is currently given credit (which
is not inconsiderable).
At the same time the clever judge has used the gap given to him by the
Respondent to call for a fresh Arms Deal enquiry as well as to put Mbeki and his
co-conspirators in the poorest of lights.
In particular refer to :
- "12.
Thomson-CSF
(Thomson), a French company with which Shaik had participated as part of a
consortium (the German Frigate Consortium), had acquired a significant stake
in the arms deal, in particular, the provision of an
armaments suite for corvettes for the South African
Navy purchased by the Government. The State
alleged that Mr Shaik's participation, through a local company called
African Defence Systems (ADS),
in which Thomson acquired a majority stake, was as
a result of the applicant's influence."
"30. It would be naïve
to suggest that the allegations concerning corruption relating to the
arms deal have ceased or diminished in intensity.
They purport to involve very senior figures in
government from the President downwards. The
Constitutional Court - the highest judicial custodians of the fountain of
all our power and authority - the constitution - has said the following of
and concerning corruption and maladministration....."
"33. Only a commission
of enquiry can properly rid our land of this cancer *4
that is devouring the body politic and the reputation for integrity built up
so assiduously after the fall of Apartheid. If the allegations made by Ms de
Lille and a group of courageous journalists are true then there is no better
reason for a commission to probe this corruption."
"34. If their allegations are not true then the
political leaders of our society should not be permitted to be defamed and
slandered in this shameless and despicable way. If they are innocent they
should not be required to resort to the ordinary courts to defend their good
names and reputations. The public purse should
fund a commission of enquiry so that they can govern in peace and
tranquility and not under an ever present cloud of suspicion and scandal *5."
*4*5 The judge could have taken the words right out of my
mouth.
Every cloud has a silver lining.
All we need is for the Acting NDPP or re-instated NDPP or new NDPP not to lose
his fearlessness, favourlessness or prejudicelessness *6 and act in accordance
with his constitutional obligations.
*6 The three cannons and canons of constructive
prosecutorial practice.